Defense Verdict for Michael Badowski in Pediatric Med-Mal Case

This case involved an alleged negligent failure to timely diagnose low grade intramedullary fibrillary astrocytoma spinal tumor in a female infant resulting in severely permanent neurological impairments. Future life care expenses were black boarded at $3,600,000.  

The named defendant physicians provided pediatric care to the patient from the date of her birth, January 27, 1999, through to  December 7, 2000 when the large T5-L1 tumor was diagnosed by MRI.  Astrocytoma tumors are rare, benign lesions of either the brain or spinal canal.   Though benign, astrocytoma tumors can cause neurological injury because their growth is confined to the closed spaces of the brain and/or spinal canal. The child had numerous well baby and sick baby visits with the pediatric practice.  During the end of the first year of her life the baby developed constipation that continued through to the second year of her life.  In addition, there were concerns that she was slow to develop certain motor skills.  These concerns became more pronounced after she reached one year of age.  Plaintiffs’ contended that these symptoms and signs were suggestive of a neurological problem which should have prompted referral to a pediatric neurologist or pediatric developmental physician.  Although, in September 2000, at 19 months, the child still could not walk independently, the mother reported resolution of the constipation complaints with prescribed dietary changes in conjunction with marked improvement in her gross motor skills. Moreover, the baby’s neurological examination was noted to be entirely normal. Referral for the MRI came in December 2000 when the child presented to the pediatricians with the new symptom onset of ice cold lower extremities.

Plaintiffs asserted that the child fell well outside the normal of published pediatric developmental milestone markers as to her gross motor skills. The plaintiffs further postulated that the child’s persisted constipation was causally linked to the expanding tumor. The defense postured that the cited milestones are meant to serve only as a guide for physicians and that there is exceedingly wide variation among children in terms of normal development, particularly when it comes to gross motor delays. The defense maintained  that the defendant physicians recognized that the child was developing slowly with respect to gross motor.  However, at no time did she demonstrate any regression with respect to specific milestones, and the parents reported that she was making consistent, albeit slow,  progress along with resolution of her constipation complaints.  In the face of a normal neurological examinations, no developmental regression or failure to make progress, it was the defense’s position that the defendant physicians met the standards of care by continuing to follow the patient.

Plaintiffs’ experts included: pediatrician, Leslie Trubow, from Chicago and pediatric neurosurgeon, George Jallo, from Johns Hopkins.
Defense experts were: pediatrician, Howard Bauchner, from Boston University School of Medicine and pediatric neurosurgeon, Ian Pollack, from CHOP Pittsburgh.

Following a week long trial, a twelve member jury returned a verdict in favor of the defendant pediatricians.

The case was prosecuted on behalf of the Plaintiffs by Rob Ross and the Philadelphia firms of Kline and Specter/Ross, Feller Casey. The Defendant pediatricians and their group were represented at trial by Margolis Edelstein’s  Michael M. Badowski.

Michael M. Badowski  
NBTA Certified Civil Trial Advocate
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